FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 7, 2006, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

           

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint, dated March 21, 2006, and filed on March 22, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his records request, described more fully in paragraph 3, below.  The complainant also requested in the March 21, 2006 complaint that the Commission impose a civil penalty in this matter.

 

3.  It is found, that by letter dated March 1, 2006, the complainant requested that the respondent permit him access to inspect the following seven (7) categories of records pertaining to the Newhall Remediation and Perimeter investigation in southern Hamden:

 

i)          the “daily field reports” that Loureiro Engineering Associates (“LEA”) was contractually obligated to send to the Department of Environmental Protection (“DEP”) for each day that work was conducted for the period January 1, 2003 to December 31, 2005; 

 

ii)         the invoices that LEA filed with the DEP from January 1, 2003 to December 31, 2005;

 

iii)         any and all soil sampling data or reports produced by LEA or its subcontractors on or in the vicinity of the Newhall remediation site, particularly, the “on-call sampling” conducted by LEA on behalf of the DEP;

 

iv)        the final report prepared for the U.S. Environmental Protection Agency by Lockheed Martin entitled “Site Investigation and Extent of Surface Soil Contamination” from June 2001;

 

v)         any and all electronic mails or other written correspondence exchanged between DEP staff and employees of LEA, including, but not limited to: Mr. Brian Cutler, Ms. Gail Batchelder, Mr. David Scott, and Mr. Mark Winbourne, for the period January 1, 2003 to February 28, 2006; 

 

vi)        any and all letters of authorization written by the Commissioner or by DEP staff for services performed by LEA; and 

 

vii)        any and all documentation from the Commissioner of the DEP extending the powers and authority of the Commissioner, in whole or in part, to employees of the Bureau of Waste Management and the Remediation Division.

 

(hereinafter “requested records”).

 

The March 1, 2006 request also indicated, in relevant part, “I do not wish to unduly burden the agency with tasks associated with this request.  If these documents are available along with others in file boxes, I am more than happy to be left to cull through the boxes myself to identify the necessary documents.  Also, given the size of the request, I am willing to work with the DEP to schedule these viewings at appropriate times over the next 15 days”.

4.  At the hearing in this matter, the complainant indicated that the only outstanding issues to be addressed by the Commission with respect to his March 1, 2006 request are as follows:

i)                    whether the respondent failed to provide him with all records described in paragraph 3iii, above;

ii)                   whether the respondent failed to provide him with all electronic mail described in paragraph 3v, above; and

iii)                 whether the respondent failed to provide him with access “promptly” as required by the FOI Act.

5.  Section 1-200(5), G. S., defines “public records or files” as:

any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape- recorded, printed, photostated, photographed or recorded by any other method.

6.  Section 1-210(a), G.S., further provides, in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours….

7.  It is found that the respondent maintains records responsive to the complainant’s request, as described in paragraph 3, above, and such records are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.

8.  It is found that the respondent timely acknowledged receipt of the complainant’s request by letter dated March 7, 2006.

9.  It is found that the respondent eventually provided the complainant with access to many of the requested records on March 30, 2006, and again during mid-May, 2006.

10.  However, as of the date of the hearing in this matter, it is found that the respondent had not yet provided the complainant with access to all records responsive to the complainant’s request, as described in paragraph 3iii and 3v, above.

11.  It is concluded that the respondent violated §1-210(a), G.S., by failing to promptly provided the complainant with access to all records responsive to the complainant’s request, as described in paragraph 3, above.

12.  With respect to the complainant’s request that a civil penalty be imposed upon the respondent, §1-206(b)(2), G.S., in relevant part, provides:

 

upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars....

 

13.  The complainant contends that the respondent and his staff appear to have deliberately dragged their feet, and purposely did not attempt to respond to his request in a prompt manner, possibly to obstruct his investigation into the alleged mismanagement of state funds by such staff. 

 

14.  It is found that the complainant’s request at issue herein was not a typical or average records request, but was voluminous, and required the assembly and compilation of thousands of pages of records.

 

15.  It is also found that at the time the complainant made his request to the respondent, the state auditors, who were conducting an audit at the request of state legislators, were actively using many of the records and files concerned.  In addition, an independent internal reviewer was also using some of the same files to analyze technical information.  Finally, DEP remediation staff was also using some of the records at issue, in connection with responding to other FOI requests.  

 

16.  Based on the facts and circumstances of this case, it is concluded that the violation found in paragraph 11 above, was not without reasonable grounds. 

 

17.  Consequently, the request for a civil penalty is denied.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  The respondent shall forthwith, if he has not already done so, provide the complainant with access to all remaining records that are responsive to the complainant’s March 1, 2006 request, as described in paragraph 3iii and 3v, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 13, 2006.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Keith Darden

26 Homelands Terrace

Hamden, CT 06517

 

Dennis Schain, Director of

Communications, State of Connecticut,

Department of Environmental

Protection

c/o Melinda Decker, Esq.

Department of Environmental Protection

79 Elm Street

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-126FD/paj/12/20/2006